*** (“Bank A”) (“A”) filed an appeal with the Assessment Appeals
Committee (“Committee”) of the Federal Deposit Insurance Corporation
(“FDIC”) by letter dated May 29, 2007. A is appealing a determination issued
by the FDIC’s Division of Finance (“DOF”) on May 17, 2007. DOF had
determined *** (“Bank B”)(“B”) to be the successor to the one-time
assessment credit ($45,364.60) of *** (“Bank C”) (“C”). A claims entitlement
to the C assessment credit under the provisions of the de facto rule in the
FDIC’s assessment regulations. That rule requires a “successor” institution
to have assumed “substantially all of the deposit liabilities” and acquired
“substantially all of the assets” of another institution. 12 C.F.R. §
327.31(c), (g). A contends that a 2001 purchase and assumption transaction
involving its predecessor (*** (“Bank D”) (“D”)), *** (“Bank E”) (as the
predecessor to B)1,
and C satisfies these regulatory requirements. The
Committee must decide whether A’s response to B’s request for review more
than 30 days after A received notice from the FDIC of B’s request, bars this
appeal, and, if not, whether the de facto rule entitles A to C's assessment
credit.

At its meeting held on July 30, 2007, the Committee allowed A and B,
pursuant to the Guidelines for Appeals of Deposit Insurance Assessment
Determinations2, to make oral presentations in support of their positions.
After carefully considering all of the written and oral submissions and the
facts of this case, the Committee has decided to grant A’s appeal and award
it the one-time assessment credit of C.

BACKGROUND

On September 17, 2001, B consummated a merger transaction with C.
Contemporaneously, B transferred assets acquired and liabilities assumed
from C to D. The applicable purchase and assumption agreement reflects that
D purchased all of C’s assets and liabilities; B retained only C’s charter.
A is the successor institution to D.

On February 8, 2006, the Federal Deposit Insurance Reform Act of 2005
(“the Reform Act”) became law. The Reform Act mandated a one-time assessment
credit of approximately $4.7 billion to be allocated among “eligible insured
depository institution[s]” or their “successor[s].” 12 U.S.C. §
1817(e)(3)(A). To be eligible for the one-time assessment credit under the statute, an institution must have
been in existence on December 31, 1996, and have paid a deposit insurance
premium prior to that date, or must be a successor to such an institution.
Section 1817(e)(3)(C).

The regulation implementing the one-time credit was approved by the FDIC
Board of Directors on October 6, 2006, becoming effective on November 17,
2006. 12 C.F.R. § 327.30-.36. The relevant portion of the rule defines
“successor” institution as the “resulting institution” (i.e., the
“acquiring, assuming, or resulting institution in a merger”) or “an insured
depository institution that acquired part of another insured depository
institution’s 1996 assessment base ratio under paragraph 327.33(c) … under
the de facto rule.” Section 327.31(f), (g).

Under the rules, therefore, two avenues exist for becoming the successor
institution to an institution that was eligible for the one-time assessment
credit: via an actual merger or under the de facto rule.

Under the de facto rule, an institution may become a successor to an
institution that was eligible for the one-time assessment credit through
“any transaction in which an insured depository institution assumes
substantially all of the deposit liabilities and acquires substantially all
of the assets of any other insured depository institution at the time of the
transaction.” Section 327.31(c). A successor institution under the de facto
rule takes its proportionate share of the eligible institution’s 1996
assessment base ratio based on the deposit liabilities it assumed in the
transaction. Section 327.33(c). In short, for purposes of entitlement to the
one-time assessment credit, an institution acquiring under the de facto rule
will be treated the same as the acquiring institution in a merger, except
that, if less than 100 percent of deposit liabilities are acquired by
purchase and assumption, then a portion of the credit and 1996 assessment
base ratio will stay behind with the selling institution.

The preamble to the rulemaking included guidance regarding application of
the de facto rule: “the FDIC considers an assumption and acquisition of at
least 90 percent of the transferring institution’s deposit liabilities and
assets at the time of transfer as substantially all of that institution’s
assets and deposit liabilities. Any successor institution qualifying under
that threshold would be entitled to a pro rata share, based on the deposit
liabilities assumed, of the transferring institution’s remaining 1996
assessment base ratio at the time of transfer.” 71 Fed. Reg. 61,374,
61,378-79 (Oct. 18, 2006). The FDIC acknowledged that inclusion of the de
facto rule into the regulation departed from the “clear, bright line that a
strictly applied merger definition would provide” but viewed it as “fairer”
than a strict merger approach. 71 Fed. Reg. at 61,379.

The FDIC’s rules also provided insured institutions with the opportunity
to request review if they disagreed with the FDIC’s determination of
eligibility (or ineligibility) to receive the assessment credit, with the
FDIC’s calculation of the credit amount, or if they believed that the
Statement of One-Time Assessment Credit did not fully or accurately reflect
their own 1996 assessment base ratios or appropriate adjustments for
successors. Section 327.36(a)(1). Institutions were given 30 days from the
effective date of the rule (that is, until December 18, 2006) to submit a
request for review of the one-time assessment credit. Section 327.36(a)(1).
Failure to file a timely request for review of the one-time assessment
credit bars institutions from subsequently requesting review. Section
327.36(b)(2).

The FDIC’s rules further provided that an institution requesting review
“shall notify, to the extent practicable, any other insured depository
institution that would be directly and materially affected by granting the
request for review and provide such institution with copies of the request
for review, the supporting documentation, and the FDIC’s procedures for
requests under this subpart.” Section 327.36(c). The rule also requires the
FDIC to make reasonable efforts to determine that such institutions have
been identified and notified.

Once a “potentially affected” institution is notified of the filing of a
request for review, it may submit a response, along with any supporting
documentation, within 30 days. Section 327.36(e). If the notified
institution does not submit a response, the rules provide that it may not
subsequently dispute the information submitted by the other institution on
the transaction at issue, or appeal the decision of the DOF director.
Section 327.36(e)(1), (2).

On October 18, 2006, the FDIC issued Financial Institution Letter (“FIL”)
93-2006. The FIL transmitted the one-time assessment credit rule and
notified the industry that the FDIC would be providing a preliminary
Statement of One-Time Assessment Credit to all eligible institutions.
According to the FIL, “A successor institution is defined as the acquiring,
assuming, or resulting institution in a merger or consolidation or the
acquiring institution under a de facto rule. The de facto rule recognizes a
transfer of at least 90 percent of an institution’s assets and deposit
liabilities as a substantial transfer of the transferring institution’s
business.” The FIL further noted that “[b]ecause the amounts shown in the
Statements [of One-Time Assessment Credit] will not reflect credits as a
result of transfers under the de facto rule, an institution claiming credits
under this rule must file a request for review.”

The FDIC’s Structure Information Management System (“SIMS”) - the FDIC’s
corporate database3 - recorded the 2001 merger transaction in a manner
inconsistent with the FIL. Instead of recording the transaction as a merger
between B and C, SIMS incorrectly recorded it as a merger between D (A’s
predecessor) and C.

Preliminary Statements of One-Time Assessment Credit were made available
to all open and active insured depository institutions on October 18, 2006,
via FDICconnect, the FDIC’s e-business website.

Because of the error on SIMS, A’s preliminary statement listed the
assessment credit resulting from the C transaction, while B’s preliminary
statement did not. Consequently, the obligation to file a request for review
to seek C’s assessment credit, which under the FIL should have fallen to A
as the de facto rule claimant, fell instead to B, the successor by merger
claimant.

On December 8, 2006, B filed a request for review with DOF seeking
consideration for the one-time C assessment credit. With its request, B
submitted, among other documents, the June 11, 2001 Purchase and Assumption
Agreement for the transaction. Sections 2.1 and 2.2 of that agreement
provide for the purchase by D (A’s predecessor) of all of the assets of C
and the assumption by D of all of the liabilities of C.

Despite the requirement in the FDIC’s rules that B notify A - as an
institution that would be directly and materially affected - and provide A
with a copy of the request for review, the supporting documentation, and the
FDIC’s procedures, B failed to do so.

By letter dated December 15, 2006, the FDIC notified A of B’s request for
review and of A’s right to respond. The notice letter provided information
regarding the de facto rule, outlined A’s right to demonstrate that it be
deemed C’s successor, and included a portion of B’s supporting
documentation. The FDIC’s letter also informed A that under the rules it had
30 days - that is, until January 16, 2007 - to submit a response to B’s
request for review.

On February 28, 2007, 43 days past the January 16, 2007 due date, A
submitted a response to DOF. In the response, A asserted that all of the
assets and liabilities of C were transferred to its predecessor, D, citing
the relevant Purchase and Assumption Agreement, which A included, along with
other documentation. According to A, B retained only C’s charter. A
concluded that under the FDIC’s de facto rule, C’s one-time assessment
credit should be transferred to A, the ultimate successor to D. A did not
address the late filing of its response.

DOF granted B’s request for review in two letters, one directed to B and
the other directed to A, each letter dated May 17, 2007.

In its letter to B, DOF stated that “an apparent error in the FDIC’s
records shows D as the successor to C.” According to DOF, “the documentation
submitted by B with its request for review supports B’s claim to be deemed
the resulting institution in the merger between B and C.” DOF also noted
that the credit would be held in abeyance pending any A appeal.

In its letter to A, DOF again referenced the “apparent error in the
FDIC’s records” that showed D as the successor to C. Within this context, it
was noted that A did not “inform the FDIC by the December 18, 2006, deadline
that D did not acquire C’s charter, or provide sufficient documentation to
demonstrate D’s eligibility as the ‘de facto’ successor to C.” DOF also
noted that A’s February 28, 2007 response was not timely. Finally, DOF
advised A how to appeal its determination.

In its May 29, 2007 appeal to this Committee, A argues that it should be
deemed C’s successor under the de facto rule because its predecessor assumed
all of C’s deposit liabilities and all of its assets. Further, A argues that
B’s request for review was time barred, that B violated the FDIC’s rules by
failing to notify A of its request for review, and that B would be unjustly
enriched by DOF’s determination. A acknowledges its response was not timely,
but asserts (in its written appeal and at oral presentation) difficulties in
retrieving documents from storage, office relocation, staffing problems, and
inclement weather as grounds for excusal.

ANALYSIS
It is undisputed that A acquired all of the assets and assumed all of the
liabilities of C, as required by the de facto rule. All of the evidence
submitted by both institutions in this appeal has been considered by the
Committee and supports A’s contention that its predecessor, D, assumed all
of the liabilities and acquired all of the assets of C in the 2001 purchase
and assumption transaction. B agreed that A had acquired all of C's assets
and assumed all of its liabilities in that transaction. Accordingly, A has
satisfied the substantive requirements of the FDIC’s de facto rule and would
be entitled to the one-time assessment credit of C. 12 C.F.R. § 327.31(c).
B, however, has raised the issue of A's untimeliness in responding to its
request for review.

The issue remains, therefore, whether A may bring this appeal in light of
its late-filed response to B’s request for review. Resolution of that issue
will determine whether A may obtain relief from this Committee.

An institution that would be directly and materially affected by granting
a request for review may submit a response within 30 days of being notified.
Section 327.36(e). According to the regulation, an institution that is
notified and “does not submit a response” may not appeal the decision of the
DOF director. Section 327.36(e)(2). The regulation, however, does not
expressly address the situation presented here, where A did submit a
response, albeit 43 days late. The preamble to the rulemaking offers the
further guidance that any institution that does not submit a “timely
response” would be “foreclosed from any appeal of the decision by the
Director of the Division of Finance ….” 71 Fed. Reg. 61,374, 61,380 (Oct.
18, 2006). The preamble language regarding “timely response” does not appear
in the regulation; the question remains whether on the unusual facts of this
case the regulation must be so interpreted.

A does not dispute that its response was filed 43 days after the date set
in DOF’s notice letter. A has cited recovery of archived files, office
relocation, staff turnovers, and inclement weather as extenuating grounds.
While these factors by themselves may merit some consideration, lapses other
than A’s may also have affected - perhaps significantly - A’s posture in
this appeal.

Initially, we note that the FDIC’s incorrect SIMS entry had the effect of
obviating the need in this matter for the de facto rule claimant - A - to
file a request for review. The SIMS error caused A’s October 18, 2006
Preliminary Statement of One-Time Assessment Credit to reflect the C credit.
But for that SIMS error, A would have been required, by December 18, 2006,
to have filed a request for review or forgo its claim. Instead, prior to the
filing of B’s December 8, 2006 request for review, A had no cause to take
any action to preserve its claim to the credit at issue. In short, the SIMS
error reversed A’s position from that of other institutions seeking to
assert de facto status under the rule. In this way, the SIMS error altered
A’s obligations and associated time limits with respect to the assessment
credit at issue, which may have significantly affected its substantive
rights.

The SIMS error conversely affected B. Because of that error, the C credit
did not appear on B’s preliminary statement of one-time credit. Accordingly,
to preserve its claim to the credit, B was required to file a request for
review, which it did on December 8, 2006.

In filing its request, however, B failed to comply with the FDIC’s
regulations: B did not notify A of the request for review or provide A - as
a potentially affected institution - with a copy of the request for review,
supporting documentation, and the FDIC’s procedures governing requests. At
the oral presentation, B acknowledged this omission. The rules express no
penalty for this failure. Nevertheless, had B complied, A would have
received notice - and a copy of B’s entire submission, rather than just the
excerpts later provided by the FDIC - earlier than it did. Whether this
might have altered the procedural posture of this matter can only be
guessed.

This case presents a scenario in which errors by the FDIC and B caused
the process designed by the FDIC for notice of assessment credits to vary
significantly from the implemented administrative scheme. Against this
backdrop, on the particular and specific facts of this case, considering the
express regulatory language, and keeping in mind notions of fundamental
fairness and the interests of justice, the Committee will look for guidance
to the excusable neglect standard of Federal Rule of Civil Procedure 6(b) in
considering the timeliness issue.4

When analyzing a claim of excusable neglect, it is appropriate to take
into account “all of the relevant circumstances surrounding the party’s
omission” including “the danger of prejudice to the [other party], the
length of the delay and its potential impact on the … proceedings, the
reason for the delay, including whether it was within the reasonable control
of the [party], and whether the [party] acted in good faith.” Pioneer
Investment Services Co. v. Brunswick Associates Ltd. Partnership, 507 U.S.
380, 385 (1993).

The background of errors on the part of the FDIC and B caused a
significant variance in the administrative scheme as it applied to A and
that variance may have affected the outcome of this matter. Little prejudice
to B appears in allowing this appeal: B did not follow the FDIC’s rules in
noticing A of the request for review, and B has conceded that A acquired all
the assets and assumed all the liabilities of C; therefore, under the de
facto rule, A would be entitled to the credit at issue. Further, A’s 43-day
delay in responding appears to have had little or no impact on the
proceedings, as the FDIC did not issue its determination on the request for
review for more than two months after that. Moreover, there is no indication
of bad faith on A’s part at any point in this proceeding. Finally, A has
offered several reasons for the delay - weather, office relocation, staff
turnover, archived files - some within its reasonable control, but it is the
distortion of the administrative process in this matter that causes our
concern. This distortion may have altered A’s obligations and time limits
and affected its substantive rights in ways that were never within the
reasonable control of any party to this proceeding.

Accordingly, for these reasons and on the particular facts of this case,
the Committee finds that A may maintain this appeal of DOF’s assessment
credit determination.

CONCLUSION

For the reasons and on the unique facts set out in this decision, the
Committee finds that A has satisfied the requirements of the FDIC’s de facto
rule and is therefore entitled to the one-time assessment credit of C.

By direction of the Assessment Appeals Committee, dated September 5, 2007.

_____________________________

Valerie J. Best
Assistant Executive Secretary

____________________________________1
For ease of reference in light
of this complicated fact pattern, this decision will refer to B (rather than
its predecessor E) when referencing the acquisition of C.2
The Guidelines are set out at 69 Fed. Reg.
41479, 41486 (July 9, 2004), and in FDIC Financial Institution Letter (“FIL”)
113-2004 (Oct. 13, 2004).3
SIMS maintains current and historical non-financial data for all
institutions; it offers institution-specific demographic data, including a
complete set of information on merger or consolidation transactions.4 The Committee emphasizes that
it is not bound by the Federal Rules and looks to them solely for guidance
in this matter.